P (A Child)

Permission to appeal should be refused where the application is incurably out of time and the proposed appeal has no realistic prospect of success. A discretionary decision falls within the permissible range where the judge has properly considered the relevant application and evidence. The court must apply the procedural rules consistently, even where the applicant presents a compelling personal case. In child proceedings, the fact that the child has subsequently been placed with a new family may make any attempt to reopen the litigation futile.

Cheshire County Council began proceedings concerning F, a baby whose parents were considered unable to provide a sufficiently secure future. On 18 August 2000 the Stoke on Trent County Court made an order freeing F for adoption. Mrs R, F’s maternal grandmother, had earlier applied for party status so that she could offer herself as a carer. Alternatively, she sought direct and continuing contact. The judge refused those applications in a judgment given on 23 May 2000.

F was subsequently placed with a new family. Mrs R applied on 15 December 2000 for permission to appeal the order of 23 May. The application was refused on paper as incurably out of time and lacking any realistic prospect of success. The issue at the oral hearing was whether that conclusion should be altered.

1. Application refused. The Court of Appeal had no alternative but to dismiss Mrs R’s application for permission to appeal.
2. The court’s function was limited. It had to operate in accordance with the procedural rules and consistently, giving equal treatment to all applicants. Personal distress or a sincere belief that injustice had occurred could not by itself justify permission to appeal.
3. The application was incurably out of time. That was sufficient reason to refuse permission. In addition, any attempt to reopen the proceedings after F had been placed in her new family was manifestly doomed to failure.
4. The judge’s decision of 23 May was manifestly within his discretionary field. He had given unusual time and care to the application, heard or accepted oral evidence from Mrs R, and considered party status, residence and contact separately. His conclusions that party status would give no benefit to the court or F, that residence was unrealistic, and that contact would be unworkable were open to him on the evidence.
5. The refusal was made without hesitation, although the court recognised the tragic effect of the outcome on Mrs R.

• Stoke on Trent County Court: On 23 May 2000, His Honour Judge Mitchell refused Mrs R’s applications for party status, a residence order and direct and continuing contact. The court later made an order freeing F for adoption on 18 August 2000.
• Court of Appeal (Civil Division): Mrs R applied for permission to appeal the 23 May order. The application was refused on paper and again after an oral hearing on 12 February 2001.